Date:
20101028
Docket:
A-515-09
Citation: 2010
FCA 288
CORAM: NADON
J.A.
LAYDEN-STEVENSON
J.A.
MAINVILLE
J.A.
BETWEEN:
OWEN &
COMPANY LIMITED
Applicant
and
GLOBE SPRING & CUSHION CO. LTD.
SIMMONS CANADA INC.
KEYNOR ASIA & I/E CO. LTD.
KEYNOR SPRING MANUFACTURING INC.
PACIFIC BEDSPRING ASSEMBLIES LTD.
RESTWELL SLEEP PRODUCTS
SPRING AIR SOMMEX CORPORATION
SPRINGWALL SLEEP PRODUCTS INC.
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Ottawa, Ontario, on October 28, 2010)
LAYDEN-STEVENSON
J.A.
[1] This is an application for judicial review of the injury
determination made by the Canadian International Trade Tribunal (the tribunal)
under the Special Import Measures Act, R.S.C. 1985,
c. S-15 (SIMA) in File No. NQ-2009-002. The
tribunal determined that the dumping of certain mattress innerspring units originating
in or exported from the People’s Republic of China (the subject
goods) had caused injury to the Canadian domestic industry producing like goods
in Canada. The
tribunal also denied the product exclusions requested by the applicant Owen
& Company Limited (Owen).
[2] Owen contends
that the tribunal erred in a number of respects, specifically:
·
the
tribunal erred in failing to distinguish between the effect of undumped goods
and dumped goods;
·
the
tribunal erred in determining that the undumped subject goods might have been
dumped; and
·
the
tribunal erred in denying Owen’s product exclusion requests.
[3] The
respondents, Globe Spring & Cushion Co. Ltd. (Globe), and Simmons Canada
Inc. (Simmons), maintain that the tribunal made no such errors.
[4] The tribunal
is highly specialized and is entitled to significant deference. Only questions
related to its jurisdiction are reviewed on a standard of correctness. All
other questions attract a standard of reasonableness: Defence Construction
(1951) Ltd. v. Zenix Engineering Ltd., 2008 FCA 109, 377 N.R. 47 at
paras. 17-20. For the reasons that follow, we are of the view that this
application should be dismissed.
[5] Owen claims
that the tribunal was bound to specifically distinguish the effects of dumped
goods from the effects of undumped goods. We agree that one of the factors set
out in the Special Import Measures Regulations, S.O.R./84-927 (the
Regulations) is whether any factors other than the dumping of the goods have
caused injury or are threatening to cause injury on the basis of the values and
prices of imports of like goods that are not dumped (para. 37.1(3)(b)(i)).
[6] In its
reasons, the tribunal engaged in an extensive discussion regarding the volume
of the subject goods. At paragraph 70, it concluded that the imports from China obtained a
market share gain of five percentage points during the period of inquiry, which
corresponded exactly to the market share losses experienced by the domestic
industry. Owen argues that a “significant proportion, if not all, of that
increase in market share was taken by undumped imports” (Owen memorandum of
fact and law at para. 47). The record does not support that submission. To the
contrary, the record discloses that the increase in market share was
substantially a result of the dumped goods (Owen application record, tab 3, pp.
43, 61; Globe confidential record, tab 8, pp. 92, 94, 95; Simmons confidential
record, tab 3, pp. 47, 51; Owen confidential record, tab 48). Owen does not
point to evidence in the record that suggests otherwise.
[7] Similarly,
the tribunal engaged in an equally extensive analysis regarding the effects of
the subject goods on prices. After arriving at a number of pivotal
findings with respect to pricing, it recognized that some of the subject goods
had been determined by the Canada Border Services Agency (CBSA) to be undumped
(tribunal’s reasons at para. 85). It appears to have concluded, at least
implicitly, that the injury caused by the dumped goods was substantial.
[8] As
mentioned earlier, paragraph 37.1(3)(b)(i) of the Regulations requires the
tribunal to determine whether any factors other than the dumping of the goods
have caused injury. The volume and prices of undumped goods is
one of the factors. As noted, the tribunal engaged in extensive analysis
regarding the volume and prices of the subject goods.
[9] It
would have been preferable for the tribunal to have provided a more fulsome
explanation as to why it did not consider it necessary to eliminate the effects
of the undumped goods. In some circumstances, such an explanation may indeed be
required. However, in these circumstances, it was reasonable for the tribunal
to conduct an inquiry with respect to the subject goods and to draw conclusions
regarding the effects of dumped goods based on data sets which covered the
subject goods, provided that consideration was given to undumped goods.
The tribunal turned its mind to the undumped goods.
[10] In our view,
a fair reading of the tribunal’s decision is that it was satisfied, notwithstanding
the possible effect of the undumped goods, that such effect would not alter its
finding that the dumped goods had caused injury to the domestic market. In
short, its reasons, read in totality, lead to the conclusion that the injury
from the dumped goods was substantial, notwithstanding the undumped goods. On
the basis of the record, that conclusion was one that was reasonably open to
the tribunal.
[11] Owen’s second
argument is founded upon the last sentence of paragraph 85 of the tribunal’s
reasons. Owen contends that it was improper for the tribunal to suggest that
individual shipments could have been dumped since dumping is only determined in
the aggregate and, in any event, such determination lies exclusively with the
CBSA. In our view, the impugned sentence does nothing more than recognize that
the modern analysis determines dumping in the aggregate despite that individual
imports may have been made below their normal value. The tribunal could have
referred to “individual imports below normal value” rather than to individual
“dumped” imports. Either way, read contextually, the tribunal conducted its
injury analysis on the basis of the CBSA findings as to the existence of
substantial dumping and particular dumping margins. The tribunal’s sentence is but
an observation.
[12] Owen’s third
argument concerns the tribunal’s denial of Owen’s exclusion requests. This
argument is two-pronged. However, it will not be necessary to address the
second prong because the first prong is dispositive.
[13] The SIMA
provides the tribunal with a very broad discretion to grant exclusions as the
nature of the matter may require. In Sacilor Acieries v. Canada
(Anti-dumping Tribunal) (1985), 60 N.R. 371, 9 C.E.R. 210
(F.C.A.D.), this Court concluded that the question whether to exclude products
on the basis that they had not been dumped is either a matter of fact or
discretion, not a matter of law.
[14] Notably,
although the exclusion requests were framed as generically-worded product
exclusions, the Tribunal did address Owen’s factual circumstances. There is no
challenge to the tribunal’s determination that the evidence indicates Globe is
capable of producing substitutable products. On this basis alone, it was open
to the tribunal to deny Owen’s exclusion requests. The refusal to grant Owen’s
exclusion requests was not unreasonable.
[15] For these
reasons, the application for judicial review will be dismissed with costs to
the respondents.
"Carolyn
Layden-Stevenson"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-515-09
STYLE OF CAUSE: OWEN & COMPANY LIMITED and
GLOBE SPRING & CUSHION CO. LTD. et al
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 27, 2010
REASONS FOR JUDGMENT OF THE
COURT BY: NADON J.A.
LAYDEN-STEVENSON J.A.
MAINVILLE
J.A.
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A.
APPEARANCES:
|
Mr. Paul D. Conlin
Mr.
Benjamin P. Bedard
|
FOR
THE APPLICANT
|
|
Mr. Geoffrey C. Kubrick
Mr.
Christopher Kent
|
FOR THE RESPONDENT: Globe Spring &
Cushion Company
FOR THE RESPONDENT: Simmons Canada Inc.
|
SOLICITORS
OF RECORD:
|
OGILVY RENAULT LLP
|
FOR THE APPLICANT
|
|
LANG
MICHENER LLP
FRASER MILNER
CASGRAIN LLP
|
FOR THE RESPONDENT: Globe Spring &
Cushion Company
FOR THE RESPONDENT: Simmons Canada Inc.
|
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